Tuesday, April 10, 2012

In Martin Case, Tough Choice Looms for Prosecutor

By JOHN SCHWARTZ

Announcing late Tuesday that she would release new information within 72 hours, Angela B. Corey, the Florida state attorney in the Trayvon Martin case, faces one of the toughest tests in the art of prosecution.

Unless her investigation of the fatal shooting of Mr. Martin by a neighborhood watch coordinator, George Zimmerman, uncovers a great deal more solid evidence than has been disclosed, the case will remain a narrative Rorschach that each side will interpret as it wishes. Finding the criminal charges that can be proved beyond a reasonable doubt, or deciding that Mr. Zimmerman’s account of defending himself in the face of deadly force places him within the protections of Florida’s Stand Your Ground law, Ms. Corey has undertaken an exercise that is unlikely to satisfy everyone.

“Factually, we know there was a killing,” said David LaBahn, the president of the Association of Prosecuting Attorneys. “Now the question is: Is it a murder, or a manslaughter, or a justifiable homicide? Is it an involuntary manslaughter? Is it an assault?”

Douglas A. Berman, a professor at Ohio State University’s Moritz College of Law, said, “It’s inevitable whatever she chooses to do will be subject to questioning and potential attack if the choices don’t fit a particular group’s narrative vision of what took place.”

That narrative took a bizarre turn on Tuesday when two lawyers for Mr. Zimmerman held a news conference in Sanford, Fla., to say they had withdrawn from the case and had not heard from him since the weekend. The lawyers, Craig Sonner and Hal Uhrig, said that against their advice, their client had reached out to Ms. Corey for a meeting. The special prosecutor had declined to speak with Mr. Zimmerman without his lawyers present. They said Mr. Zimmerman had also contacted the Fox News host Sean Hannity, but would not reveal the substance of the call.

Mr. Zimmerman has also started a Web site, therealgeorgezimmerman.com, asking for funds to deal with the “life altering event” that, he wrote, forced him “to leave my home, my school, my employer, my family and ultimately, my entire life.” His lawyers said they had been unaware of Mr. Zimmerman’s plans to create the site.

In an interview, Mr. Sonner said, “I am concerned about George,” adding, “He is not acting in his best interest right now.”

Mr. Sonner believes that his former client, who has also not returned calls from his father, is no longer in Florida, he said, adding that he was ready to resume his representation if Mr. Zimmerman explained his actions since the weekend and said, “I was wrong.”

Mr. Sonner stressed, “I stand by everything I have said about George and the case: that he acted in self-defense and that he is not a racist.”

The Martin family’s lawyer, Benjamin Crump, said it was worried that Mr. Zimmerman had disappeared and considered him a flight risk. “The family has some serious concerns about the fact that the killer of their son, Trayvon Martin, is unaccounted for,” Mr. Crump said. “Nobody knows where he’s at.”

Mr. Zimmerman followed Mr. Martin on the evening of Feb. 26 as Mr. Martin walked back to the home where he was staying in a gated community in Sanford. Mr. Zimmerman said he shot Mr. Martin in self-defense after Mr. Martin, who was 17 and unarmed, confronted and assaulted him. The shooting, and an investigation that resulted in no charges because of Florida’s Stand Your Ground law, led to a nationwide clamor for justice for Mr. Martin, who was black. Mr. Zimmerman is Hispanic.

When deciding how to proceed with a criminal case, prosecutors must decide whether to seek the toughest possible charges, said Gabriel J. Chin, a professor at the University of California, Davis, School of Law. “There is a tradition of ‘charging high’ and letting the jury decide,” he said, but that strategy has its risks.

“You don’t want to make an opening statement to the jury where you hurt your credibility,” Professor Chin said, by seeming to impute motives to a defendant without being able to prove them. “If you end up overreaching, you could wind up with nothing.”

Tough charges can be useful in other ways, said Eric Abrahamsen, a defense lawyer in Tallahassee, Fla.: a charge like second-degree murder may be harder to prove in court than manslaughter, but could pressure a defendant into a plea bargain or allow the jury to “split the baby” by choosing the lesser charge of manslaughter.

If Ms. Corey declines to prosecute Mr. Zimmerman, the case may not be over. The Department of Justice is conducting its own investigation, which could lead to a separate federal prosecution. “The department’s investigation is independent, and we are providing assistance to and cooperating with state officials in their investigation into the incident,” said Xochitl Hinojosa, a Justice Department spokeswoman.

The federal investigation is being run by the department’s civil rights division, and involves the United States attorney’s office for the Middle District of Florida and the Federal Bureau of Investigation. While a separate trial on charges of violating civil rights is a possibility, “the government must prove beyond a reasonable doubt that a person acted intentionally and with the specific intent to do something which the law forbids,” Ms. Hinojosa said. A prosecution could not be based on a finding that negligence, recklessness, a mistake or an accident was involved.

If the case does proceed to a state trial, the road ahead will be rough because of the media spotlight, said Craig Watkins, the district attorney for Dallas County, Tex. One of the toughest challenges of prosecuting high-profile cases, he said, is that so many of the early moves show up in public before the trial begins, which can endanger fairness at trial.

Mr. Watkins said: “It’s like the O. J. Simpson case all over again. Where are you going to find a jury pool that is unbiased and hasn’t heard anything about the case?”